Plaintiffs then brought this wrongful initiation action against Parker NW
and Hammond, seeking noneconomic and punitive damages. Among other rulings, the
trial court struck plaintiffs' claims for punitive damages against all defendants; excluded
evidence relating to plaintiffs' superseded pleadings; granted Hammond's motion for a
directed verdict in her favor against all plaintiffs; denied plaintiffs' motions for directed
verdicts against Parker NW; and declined to give various jury instructions requested by
the parties. Plaintiffs' claims against Parker NW were submitted to the jury, which
returned a verdict in favor of plaintiff Stevens and in Parker NW's favor against the other
plaintiffs.

Plaintiffs appeal, advancing over two dozen assignments of error. In regard
to the verdict in its favor against plaintiffs Roop, Aspenwall, Pointer, and Sherbourne,
Parker NW cross-assigns error to the trial court's failure to give a requested jury
instruction and to the granting of plaintiffs' motion to exclude certain evidence. In regard
to the verdict in plaintiff Stevens's favor, Parker NW cross-appeals, raising the same
issues as are raised in its cross-assignments of error. We affirm on the appeal and on the
cross-appeal.

I. BACKGROUND

We begin with an overview of the facts, describing the original defamation
action, the subsequent action for wrongful initiation of civil proceedings, and the trial
court's rulings that are relevant to the assignments and cross-assignments of error on
appeal. As necessary, we later detail additional relevant facts when we address the
parties' specific arguments.

A. The Defamation Action

Parker NW is in the gravel business. In 1994, it was seeking approval from
Clackamas County to expand a gravel mining operation on the Clackamas River. The
county reviewed an application under the Goal 5 natural resources inventory process.
Plaintiffs Roop and Stevens, who were members of a local citizen's group, Friends of
Barton Park and The Scenic Clackamas River, opposed the application and testified
against it at several county hearings.

Parker NW's president, Traverso, was concerned that the company was
being defamed in the county hearings. He asked the company's land-use attorney, Parisi,
whether it could bring legal action against the opponents of the permit application. Parisi
advised against doing so. Traverso also asked Parker NW's corporate attorney, Wall,
whether it could bring an action for defamation for statements made in the county
hearings. In a May 1994 letter, Wall advised Traverso that, assuming that the application
process was quasi-judicial in nature, statements made therein were absolutely privileged
and that it would be "safer to proceed against outright lies" after the completion of the
hearing process.

On September 22, 1994, plaintiffs Aspenwall, Sherbourne, and Pointer
hosted a broadcast of "The Water Forum." Plaintiffs Roop and Stevens appeared as
guests on the program; Parker NW and the Clackamas County commissioners were
invited to appear but did not attend. The five plaintiffs made various statements about
Parker NW and the proposed gravel mining operation. Among other things, one or more
of the plaintiffs stated that the proposed operation would "do further damage to the
Clackamas [River]" and would contaminate the drinking water of some 200,000 nearby
residents; that Parker NW had "paid off" the commissioners and the county; that Parker
NW had previously illegally constructed a dike in the Oxbow area without first getting a
permit; that Parker NW's construction operations had disturbed Indian burial sites; and
that Parker NW had connived to have taxpayers foot the bill for some of its construction
operations.

Parker NW's land-use attorney, Parisi, saw the program and believed that
the company's reputation had been impugned. In November 1994, Parisi's law firm
prepared a written memorandum analyzing the statements made on the program. The
memorandum did not, however, recommend pursuing legal action against plaintiffs.

Two months later, Traverso asked Hammond to review the matter. After
watching a videotape of the program, Hammond advised Traverso in writing that, in her
opinion, River Island Sand & Gravel, and "possibly" Traverso individually, had a claim
for defamation against the five participants.

Hammond opined that the "overall tenor" of the program was that Parker
NW, as well as the county commissioners, were "acting illegally as it relates to the
granting of the permit." She listed particular statements that she believed were
defamatory and opined that those statements implied, among other things, that Parker NW
was bribing county officials; that it was committing the felony of abuse of corpse in
regard to "Indian graves" at the site; that it was contaminating the Clackamas River "so as
to intentionally harm 200,000 residents downstream" who relied on the river for drinking
water; that it was "disregarding/ignoring" statewide land-use laws; and that it was using
taxpayer money to further its own operations. She characterized plaintiffs' statements on
the program as "neither fair nor accurate" and opined that, at the least, plaintiff Stevens
had made statements that she knew to be false or lacked reasonable grounds to believe
were true.

Finally, Hammond noted various "practical considerations," including the
possible reluctance of county commissioners to become involved as witnesses in such a
case; the possibility that the participants had no funds to satisfy any judgment; the
possibility that jurors would see the participants as "the little guys"; and the risk of
"dredging up" the issue after it had become "dormant." Hammond noted that, as an
alternative to bringing the action, Parker NW or its legal counsel might inform the
participants in writing that it was demanding that they "cease and desist" from future
statements, thereby "put[ting] them on notice" of their probable legal liability and the fact
that Parker NW "will tolerate no such conduct in the future."

Hammond and Traverso also spoke by telephone about the possibility of
legal action. Hammond's written notes from the conversation included the following
unattributed comments: "let air out of group," "[t]hese people need to be put away," and
"breaking backs." Traverso told Hammond that there were documents in his and Parisi's
offices pertaining to the falsity of plaintiffs' statements; Hammond did not review the
documents. Traverso did not inform Hammond of Wall's or Parisi's opinion about
possible legal action or provide her with a copy of the memorandum prepared by Parisi's
office.

On September 19, 1995, Hammond filed a defamation action on Parker
NW's behalf, asserting claims for libel per se and slander per se against each plaintiff.
On October 24, 1995, Hammond spoke for the first time to Parisi, who stated that
plaintiff Stevens was a "liar" and talked about"whack[ing]" plaintiffs. Hammond did not
ask Parisi for documents pertaining to the truth or falsity of plaintiffs' statements. Around
November 8, 1995, Hammond received from Traverso a copy of the Parisi firm's
memorandum. On November 10, she filed an amended complaint alleging additional
claims against Stevens.

After the filing of the complaint, plaintiff Roop felt "guarded" and "fearful"
of testifying further against Parker NW's permit application. At the final hearing on the
application, which occurred on December 7, 1995, Roop spoke briefly and Stevens held
up a photograph. Immediately after the hearing, Hammond told Stevens's husband that,
the previous day, Parker NW had dismissed the action against plaintiffs.

Before trial, plaintiffs moved to exclude any reference to "punitive
damages" and, separately, to exclude any reference to the fact that, after plaintiffs' claims
for punitive damages were struck, plaintiffs sought, in their second amended complaint, a
greater amount of noneconomic damages than they had sought in their original
complaints. Defendants did not oppose the former motion. As to the latter motion,
defendants countered that such evidence was admissible as a "judicial admission" that
was relevant to the purpose of "impeaching the credibility of" plaintiffs' assertion of
noneconomic damages.

The trial court granted the former, unopposed motion. The trial court also
granted the latter motion to exclude any reference to the amount of noneconomic damages
pleaded in plaintiffs' original complaints. The trial court reasoned that, having granted
defendants' earlier motion to strike plaintiffs' claims for punitive damages and plaintiffs'
motion to exclude any reference to punitive damages, it would be "inappropriate" for
evidence of the changed amount of noneconomic damages to be admitted, because there
would be no explanation of the circumstances leading to that change. As the court
explained, "the amount of money hasn't significantly changed. The label has. And it
would be unfair for the defense to [present] an argument that the Plaintiffs dramatically
changed the claim for [noneconomic] damages in a vacuum."

After summarizing the procedural history and timing of the motion to strike
the claim for punitive damages, the court reiterated:

"I don't think it is reasonable to simply introduce to the jury in a vacuum the
fact that the Plaintiffs' [noneconomic] damages went from $100,000 to $2
million dollars on a date without explaining all of what it's just taken me
quite awhile to explain. And I'm not sure it's appropriate to do it for that
purpose.

"It is fair to inquire of the Plaintiffs about what are the facts that
supported their claim for [noneconomic] damages in these amounts. And it
is fair to keep the Plaintiffs to the proof [of noneconomic] and not punitive
damages because they are not in the case.

"But I just don't find the inference one that can reasonably be drawn
without reference to the whole history of what happened so far."

The court agreed with defendants that punitive damages "are a whole different kettle of
fish" from noneconomic damages and that each type of damages was required to be
proved according to its own standards. The court reasoned, however, that,
notwithstanding those differences, "to say that the Plaintiffs must have undervalued or
overvalued their [noneconomic] damage claim precipitously, without there being any
explanation of the context in which that happened, for the purpose of showing this jury
that the damages are not in fact significant, I think is unfair in a vacuum."

The case proceeded to trial. At the close of plaintiffs' evidence, Hammond
moved for a directed verdict on the ground that there was no evidence as to two "essential
elements" of plaintiffs' wrongful initiation claims. First, Hammond argued that there was
no evidence that, as Parker NW's legal representative, she lacked probable cause to bring
the defamation action. Second, she argued that there was no evidence that she prosecuted
the action with malice or with a primary purpose other than that of securing an
adjudication of the claims. Specifically, Hammond argued that there was no evidence
that she "ratified" the negative "comments" about plaintiffs that were made by others or
that, in prosecuting the claims, she did anything other than follow her client's instructions.
Plaintiffs countered that, where Hammond failed to investigate in any manner the truth or
falsity of plaintiffs' allegedly defamatory statements, it was inferable that probable cause
was lacking to prosecute the defamation action and that, in turn, malice was inferable
from the lack of probable cause. Plaintiffs also argued that there was circumstantial
evidence of Hammond's malice, such as Traverso's purported comments about "taking the
air out of the group"; according to plaintiffs, a jury could find from that evidence that
Parker NW had an improper purpose of bringing the claim "as a tool for [its] political
agenda" and that Hammond "adopted" that improper purpose.

The trial court concluded that, in regard to probable cause, plaintiffs'
evidence demonstrated at most that, at the time of filing the defamation claims, Hammond
"didn't score 100 percent on the legal analysis," that she later amended the claim, and that
she then dismissed the claims. The court also concluded that the evidence regarding
probable cause therefore did not support an inference of malice or improper purpose and
that there also was no evidence that Hammond had "any personal animus or any personal
desire to do anything other than represent her client in adjudicating the claim." The trial
court therefore granted Hammond's motion for directed verdict.

Also at the close of the evidence, counsel and the court conducted an
extended discussion of jury instructions and the form of the verdict, particularly as to the
issue of probable cause. The trial court noted that, under existing precedents, "instructing
on the issue of probable cause is very difficult when the jury can find a number of
different fact combinations" and that "[a]nother possible procedure is to settle the factual
disputes by having the jury answer special interrogatories." Plaintiffs indicated that they
did not want "particular factual interrogatories" in the verdict form. Instead, they
proposed that the court instruct the jury that, if it found certain facts, defendants either did
or did not have probable cause, whereas the verdict form would simply ask whether, in
initiating or continuing the defamation action against each individual plaintiff, defendants
lacked a reasonable belief that plaintiffs' statements were false or defamatory. Plaintiffs
stated that they understood that their approach would preclude the trial court from making
any post-verdict determination, based on facts found by the jury, of defendants' probable
cause. Counsel for plaintiffs stated that, instead, under their suggested approach,

"[t]he Court is making the initial threshold. If [the jury] believe[s]
this, then [defendants] have probable cause. So, the instruction embodies
the Court's determination on probable cause."

Later, as the parties and the court were discussing the verdict form,
plaintiffs again stated that, "in light of the fact that the Court would have an instruction:
If Defendant[s] actually and reasonably believed X, Y, Z, then Defendant[s] had probable
cause," then the question on the verdict form relating to probable cause "should simply
be: Did Defendant[s] initiate or continue the defamation action against Plaintiff without
probable cause?" The court asked plaintiffs why it was insufficient to instruct the jury
that "for the Defendants to have had probable cause they had to have a reasonable basis to
believe that [plaintiffs' statements] were false and defamatory." Plaintiffs responded that
such an instruction failed to inform the jury "what would be a reasonable basis as far as
the law is concerned." The court reiterated that it was "proper" to instruct the jury to
consider whether defendants "lacked a reasonable belief based upon the evidence
presented here" and that, conversely, it was unable to "fashion an instruction that
incorporates every factual contention that goes into the truth, falsity, or uncertainty of the
truth or falsity of" plaintiffs' allegedly defamatory statements.

The parties then returned to their discussion of the verdict form. Although
plaintiffs submitted to the trial court several written jury instructions pertaining to
probable cause, the record does not contain a written instruction involving the trial court's
identification of specific facts that would, or would not, constitute probable cause.

Ultimately, the trial court instructed the jury that plaintiffs were required to
prove that defendants acted without probable cause in the underlying defamation action;
that one element of a defamation claim is that, when the speaker made the allegedly
defamatory statement, the speaker knew that the statement was false or the speaker made
the statement in reckless disregard of whether the statement was true or false; and that it
should determine defendants' probable cause as follows:

"In order to prevail [in their wrongful initiation claim], one element
each of the Plaintiffs must prove * * * is that the Defendants lacked
probable cause to initiate or continue the defamation action against each
Plaintiff.

"I instruct you that Defendants had probable cause to initiate or
continue the defamation action if Defendants reasonably believed in the
existence of facts upon which each claim against each plaintiff is based and
either that Defendants correctly or reasonably believed, and that under those
facts the claim may be valid under the law of defamation, as I just defined
that for you, or that the Defendants believed to this [e]ffect in reliance upon
the advice of counsel, sought in good faith and given after full disclosure of
all relevant facts within Defendants' knowledge and information.

"In determining whether Defendants had probable cause to initiate or
continue the defamation action, you may consider only the facts and
circumstances existing at the time the defamation suit was initiated or
continued.

"If you do find that Defendants rel[ied] on the advice of counsel, I
instruct you to find in favor of the Defendants."

Plaintiffs did not except to that instruction. The verdict question pertaining
to probable cause was, "Did defendants Parker Northwest and defendant Traverso initiate
or continue the defamation action against [individual named plaintiff] without probable
cause?" Neither plaintiffs nor defendants objected.

Next, defendants requested that, after instructing the jury that their
defamation action was filed within three days of the running of the statute of limitations,
the trial court give the following instruction pertaining to their affirmative defense under
former ORS 30.895(2):

"Another provision of Oregon law provides that if a lawsuit is filed
within sixty days before [the running of the statute of limitations], and if it
is filed for the purpose of preserving and evaluating the claim, and if it is
thereafter dismissed within 120 days, such a lawsuit cannot be a basis for a
claim for wrongful use of a civil proceeding. You are instructed that the
defamation lawsuit did meet all the foregoing time requirements.
Therefore, the only remaining question for you to determine is whether the
defamation lawsuit was filed for the purpose of preserving and evaluating
the claim. It is up to you to determine whether defendants filed the lawsuit
having as a purpose (not necessarily the only purpose) the preservation and
evaluation of the claim.

"If you determine that one of the purposes of filing the lawsuit was
to preserve and evaluate the claim, then your verdict shall be for
defendants."

(Emphasis added.)

The trial court declined to give that instruction. The court concluded that,
because former ORS 30.895(2) referred to filing an action for "the" purpose of preserving
and evaluating the claim, the instruction did not accurately reflect the statute.

As noted, the jury returned a verdict in favor of plaintiff Stevens against
Parker NW and in favor of Parker NW as to the remaining plaintiffs.

II. ANALYSIS OF ASSIGNMENTS OF ERROR

A. Punitive Damages

1. The parties' arguments

In their first through fifth assignments of error, (9)
plaintiffs argue that the
trial court erred as a matter of law in striking their claims for punitive damages.
Specifically, plaintiffs argue that Article I, section 8, did not require that those claims be
struck, because the tort of wrongful initiation of civil proceedings does not involve
protected speech. They argue that, instead, as to an attorney against whom such a claim is
brought, the claim involves tortious conduct such as filing "frivolous" documents or
"making false certifications." They also argue that, as to litigants, the protections of
Article I, section 8, do not extend to "deceitful conduct" such as concealment of relevant
facts and that "ample safeguards"--including limiting jury instructions--exist to protect
any aspect of a litigant's conduct that does, in fact, constitute protected expression.
Finally, plaintiffs argue that the tort of wrongful initiation of civil proceedings was
recognized at the time of the adoption of the Oregon Constitution, and that such a claim
therefore constitutes a historical exception to the protections of Article I, section 8.

Defendants respond by arguing, among other things, that the trial court's
ruling on their motion to strike plaintiffs' claims for punitive damages must be affirmed
because the court based its ruling not only on Article I, section 8, but also on Article I,
section 10, and plaintiffs present no challenge to that basis for the court's ruling. In reply,
plaintiffs ignore that argument and again assert that the recovery of punitive damages for
wrongful initiation of civil proceedings is subject to a historical exception from the
protections of Article I, section 8.

2. Analysis

We agree with defendants that, where plaintiffs fail to challenge the
alternative basis of the trial court's ruling, we must affirm it. See, e.g., Jensen v. Medley,
336 Or 222, 239-40, 82 P3d 149 (2003) (although trial court's jury instruction relating to
one of the plaintiff's theories of liability was erroneous, reviewing court nevertheless
affirmed the jury's verdict because there was another basis for it that the defendant did not
challenge on appeal). We therefore reject plaintiffs' first through fifth assignments of
error without further discussion.

B. Directed Verdict in Favor of Hammond

1. The parties' arguments

In their sixth through tenth assignments of error, (10)
plaintiffs argue that
the trial court erred in granting Hammond's motions for directed verdicts in her favor.
The parties' arguments concern whether plaintiffs demonstrated at least a jury question as
to two of the elements of their wrongful initiation claim: probable cause and improper
motive.

Plaintiffs' principal argument as to probable cause is that, because
defendants voluntarily dismissed their defamation action, plaintiffs are entitled to a
presumption that the action had been filed without probable cause. According to
plaintiffs, because Hammond failed affirmatively to rebut that presumption as a matter of
law, the trial court's entry of a directed verdict in her favor was error. As to the element
of improper purpose, plaintiffs contend that it may be established merely by
demonstrating an absence of probable cause. In the alternative, plaintiffs contend that the
evidence in the record was sufficient to permit a jury to infer an improper purpose.

Hammond responds that plaintiffs failed to demonstrate jury questions on
both elements. With respect to the element of probable cause, Hammond argues that
there is no applicable "presumption" that she filed the defamation complaint without
probable cause. She argues that, instead, plaintiffs are required to adduce some evidence
that she lacked probable cause and plaintiffs failed to make the required showing here.
With respect to improper motive, Hammond argues that the trial court correctly granted
her directed verdict motion on the ground that plaintiffs presented no evidence, either
direct or circumstantial, from which a reasonable jury could find that she acted with
malice or an improper purpose.

2. Analysis

We begin with an analysis of the parties' arguments concerning probable
cause, because it is dispositive. In reviewing the trial court's directed verdict in
Hammond's favor, we determine whether the facts in evidence, interpreted in plaintiffs'
favor, and every beneficial inference that can be drawn from those facts entitled
Hammond to a favorable decision as a matter of law. Jones v. Emerald Pacific Homes,
Inc., 188 Or App 471, 478, 71 P3d 574, rev den, 336 Or 125 (2003). "A directed verdict
based on insufficiency of the evidence is appropriate only if there is a complete absence
of proof of an essential issue. Therefore, we review the record for any evidence that
would allow a reasonable factfinder to conclude otherwise." Kotera v. Daioh Int'l U.S.A.
Corp., 179 Or App 253, 272, 40 P3d 506 (2002) (emphasis in original; citation omitted;
internal quotation marks omitted).

Under Oregon law, the elements of a claim for wrongful initiation of a civil
proceeding are as follows:

"(1) The commencement and prosecution by the defendant of a
judicial proceeding against the plaintiff;

For purposes of a claim for wrongful initiation of civil proceedings,
probable cause means that the person initiating the civil action "reasonably believes" that
he or she has a good chance of prevailing--that is, he or she subjectively has that belief
and the belief is objectively reasonable. Perry, 187 Or App at 578. Moreover, "probable
cause to file civil litigation requires a reasonable belief before the claim is filed that
evidence exists to prove the allegations made against a particular defendant." Id. at 581
(emphasis in original).

The standard for probable cause to bring a civil action is less stringent than
that required to prosecute a criminal action. Blandino v. Fischel, 179 Or App 185, 190,
39 P3d 258, rev den, 334 Or 492 (2002); see also Restatement § 675 comment j (the
question is not whether the litigant is correct in believing that the claim is tenable, but
whether that belief is reasonable). Evidence that the underlying action was undertaken
upon the advice of counsel, relied on in good faith, that the action had a reasonable
probability of success is enough to establish probable cause. Blandino, 179 Or App at
191 (citing Erlandson v. Pullen, 45 Or App 467, 474-75, 608 P2d 1169 (1980)).

The voluntary dismissal of a claim does not automatically create a
presumption that the claim was filed without probable cause. Any number of
explanations might be at the root of such a dismissal. Thus, the significance of the
dismissal "depends upon the circumstances under which the proceedings are withdrawn,"
Portland Trailer & Equipment, 182 Or App at 357 (quoting Restatement § 674 commentj
(internal quotation marks omitted)), and, in particular, whether there is an explanation for
the dismissal other than the lack of probable cause. Alvarez, 234 Or at 261.
Uncontradicted testimony relating to the existence of probable cause cannot be
controverted by the mere assertion that the testimony is not credible. See Blandino, 179
Or App at 192.

The standards for probable cause apply to attorney defendants who were
alleged to have acted without probable cause in prosecuting civil actions on behalf of
their clients. See Blandino, 179 Or App at 188, 192 (attorney defendant in wrongful
initiation proceeding had probable cause to bring underlying malicious prosecution action
against the wrongful initiation plaintiff).

Once the facts relevant to probable cause are determined, whether the
defendants in a wrongful initiation action had probable cause to prosecute the underlying
action is a question of law. Alvarez, 234 Or at 261 (citing, among other cases, Hess v.
Oregon Baking Co., 31 Or 503, 515, 49 P 803 (1897)); see also Varner v. Hoffer, 267 Or
175, 178-79, 515 P2d 920 (1973). "In general, if the facts germane to the determination
of probable cause are in dispute, then the case must be decided by a factfinder before the
legal determination of probable cause is made." Perry, 187 Or App at 578 (citing
Kuhnhausen v. Stadelman, 174 Or 290, 310-11, 148 P2d 239, 149 P2d 168 (1944).

a. Subjective belief

We begin by considering whether there is any evidence that Hammond
lacked a subjective belief that the defamation claims were tenable. The record shows
that, in January 1995, Hammond reviewed a videotape of the relevant "Water Forum"
broadcast and conducted research on the legal issues presented in defamation claims.
Hammond then sent Traverso a letter in which she set out specific statements made by
plaintiffs during the program, stated what she characterized as the defamatory
"implications" that could be drawn from them, and informed Traverso that she believed
that Parker NW had a cause of action against plaintiffs. Hammond testified that, although
Traverso previously had told her that he thought the statements were defamatory, that
information did not influence her opinion as to whether they were; rather, she drew her
own conclusions in that regard.

Hammond testified that, between her conversation with Traverso in
February 1995 and the filing of the action in September 1995, she did no further research
into the matter because Traverso did not authorize any further work. She testified that, at
the time she filed the action, she still had not received any documents from Traverso, but
that she "had certain facts" and "knew" that documents existed; she also testified that
Traverso did not himself have all of the relevant documents but that those that he did not
have may have been in the possession of Parker NW's land use attorney, Parisi, or may
have been submitted to the county as evidence in the Goal 5 proceeding.

Hammond testified that she filed the original complaint on September 19,
1995, without conducting further investigation of the matter because she wanted to avoid
the running of the statute of limitations and because she assumed that, if necessary, the
complaint could be amended. Hammond also testified that, at the time she filed an
amended complaint on November 10, 1995, she believed, based on information she had
received from Traverso, that statements that had been made by various plaintiffs about the
existence of a permit for a dike, about "the Indian skeletons," about a water rights permit,
and other statements that formed the predicates of Parker NW's defamation action were
false or had been made with reckless disregard for the truth.

Plaintiffs presented no evidence contradicting Hammond's testimony
relating to her subjective belief that the defamation action was tenable. They likewise
point to no evidence in the record from which it may be inferred that Hammond's account
of the reasons for filing, and later withdrawing, the defamation claims are inaccurate. As
we have noted, plaintiffs' principal argument is that, because Hammond ultimately
withdrew the defamation complaint, they are entitled to a presumption that she had filed
the complaint without probable cause. As discussed above, however, plaintiffs are
entitled to no such presumption. Hammond explained the reasons for withdrawing the
complaint, and plaintiffs have identified no evidence from which it could be inferred that
Hammond is not to be believed. Again, uncontradicted testimony cannot be controverted
merely by declaring that it is not true. Blandino, 179 Or App at 192. In short, there is
evidence in the record that Hammond subjectively believed the defamation claim to be
tenable; conversely, there is no evidence that she lacked that belief.

b. Objective reasonableness

We turn to whether there is any evidence from which a jury could find facts
or draw inferences requiring the legal conclusion that Hammond's subjective belief was
not objectively reasonable. As previously noted, Hammond reviewed the videotape of
plaintiffs' "Water Forum" statements in January 1995. At that time, Traverso told her that
"certain statements" made by plaintiffs were "false and defamatory." Traverso explained,
and Hammond understood from his explanation, that plaintiffs Roop, Stevens, and Pointer
had been at various Goal 5 hearings and, as a result, knew facts that were relevant to the
falsity of their statements, such as facts relating to the existence of a permit for a dike and
facts relating to Indian burial artifacts at the site. Also, as noted above, Traverso
informed Hammond that he had documents supporting his position that plaintiffs'
statements were false; according to Traverso's testimony, he gave Hammond files relating
to the "Indian burial issue" and told her that he would provide her with additional
information that currently was in Parisi's possession.

On October 24, 1995, Hammond spoke to Parisi about the Goal 5 process
and Parisi told her, among other things, that plaintiff Stevens was a "liar." Hammond
testified that, as of November 8, 1995, she still had not seen any documentation regarding
the facts at issue in plaintiffs' allegedly defamatory statements. Traverso testified that he
was not able to meet with Hammond before that time regarding the lawsuit due to the
need to complete paving work during October.

Plaintiffs have not directed us to any evidence in the record that contradicts
the foregoing set of facts. Their arguments instead are that, even on those facts, we must
conclude that Hammond acted unreasonably as a matter of law.

First, plaintiffs contend that Hammond acted unreasonably because she
relied on information provided to her by Traverso and Parisi without conducting an
independent investigation. Plaintiffs urge us to adopt a hard-and-fast rule that lawyers
always are obligated to conduct independent investigations and may not merely rely on
the information provided by their clients before filing a complaint. That, however, is not
the law in Oregon. As the Supreme Court held in Lambert v. Sears, Roebuck, 280 Or
123, 131, 570 P2d 357 (1977), whether an attorney has an obligation to conduct an
investigation to verify independently the information provided by a client depends on the
facts of each case, specifically, whether the facts create the appearance that the client may
not be providing the attorney with all the necessary information. Plaintiffs do not identify
any specific facts that would have triggered such an obligation in the defamation action at
issue in this case.

Second, plaintiffs argue that Hammond acted unreasonably because the
defamation claims themselves were untenable on the merits. Specifically, plaintiffs argue
that Hammond neglected to consider that the statements that formed the basis of the
defamation claims were constitutionally protected because Parker NW and Traverso were
"public figures." As a result, plaintiffs argue, under New York Times Co. v. Sullivan, 376
US 254, 84 S Ct 710, 11 L Ed 2d 686 (1964), they would have been immune from
liability for defamation in the absence of proof of actual malice. In a similar vein,
plaintiffs assert that the defamation claims were untenable because their statements were
merely opinions and, in any event, were true.

In asserting those arguments, however, plaintiffs misapprehend the nature
of the inquiry, which is not whether they would have prevailed on the merits of the
defamation claims but, rather, whether it was reasonable under the circumstances for
Hammond to have asserted them. We addressed that issue in Erlandson, in which we
explained that less is required of counsel in bringing a civil suit than in initiating a
criminal action:

"'Sometimes this is expressed by saying that want of probable cause must be
"very clearly proven," or "very palpable," or that "greater latitude" must be
allowed than in a criminal case. Apparently what is meant is merely that the
instigator need not have the same degree of certainty as to the facts, or even
the same belief in the soundness of his case, and that he is justified in
bringing a civil suit when he reasonably believes that he has a good chance
of establishing it to the satisfaction of the court or the jury. He may, for
example, reasonably submit a doubtful issue of law, where it is uncertain
which view the court will take.'"

45 Or App at 474-75 (quoting William Prosser, Law of Torts § 120, 854 (4th ed 1971));
see also Blandino, 179 Or App at 190 (same).

In this case, plaintiffs have failed to demonstrate that their defenses to the
defamation claims were so irrefutable that Hammond could not reasonably have believed
that her clients could have prevailed. For example, plaintiffs' contention that proof of
actual malice would have been required depends on the assertion that Parker NW and
Traverso in fact were "public figures." The assertion is, at the least, reasonably debatable.
Indeed, plaintiffs never explain why Parker NW and Traverso must be regarded as public
figures. Apparently, plaintiffs assume that, because Parker NW's proposal to expand its
business operations was a matter of public interest, the proposal made the company and
its president public figures. In Bank of Oregon v. Independent News, 298 Or 434, 443,
693 P2d 35, cert den, 474 US 826 (1985), however, the Oregon Supreme Court explained
that, "[m]erely opening one's doors to the public, offering stock for public sale,
advertising, etc., even if considered a thrusting of one's self into matters of public interest,
is not sufficient to establish that a corporation is a public figure."

Similarly, plaintiffs contend that their statements could not plausibly be
regarded as defamatory because they were merely opinions, yet they never explain why
that is so. Statements of mere opinion are constitutionally protected, it is true. See, e.g.,
Hickey v. Settlemier, 141 Or App 103, 110, 917 P2d 44, rev den, 323 Or 690 (1996). But
even opinions may be actionable if they imply the existence of underlying defamatory
facts. Id. In this case, the statements at issue included, among other things, a statement
that Parker NW was attempting to "do further damage to the Clackamas [River]," which
supposedly would contaminate the drinking water of some 200,000 nearby residents; that
Parker NW had "paid off the Commission and the County"; that Parker NW had
previously illegally constructed a dike in the Oxbow area without first getting a permit;
that Parker NW's construction operations had disturbed Indian burial sites; and that Parker
NW connived to have taxpayers foot the bill for some of its construction operations.
Those statements appear to concern matters of historical fact, not mere opinion. At the
very least, it is reasonably arguable that they implicate the existence of undisclosed
defamatory facts.

We conclude that plaintiffs have failed to identify any evidence that would
support the conclusion that Hammond lacked probable cause to believe that the
defamation claims that she filed on behalf of Parker NW were at least reasonably tenable.
The trial court therefore did not err in granting a directed verdict in favor of Hammond on
plaintiffs' wrongful initiation claims.

Parker NW responds that the trial court properly denied plaintiffs' motions
because there was at least a jury question as to whether it had probable cause to believe
that it had been defamed. In particular, Parker NW contends that proof of actual malice
would not have been required, because it was not a "public figure." At the very least,
Parker NW argues, the matter is subject to reasonable dispute. Alternatively, Parker NW
argues that, even if it were a "public figure," the record contains ample evidence from
which a jury could find that facts supporting the conclusion that Parker NW had probable
cause to believe that plaintiffs' statements had been made with actual malice and that
those statements caused Parker NW injury. Finally, Parker NW argues that the trial court
properly denied plaintiffs' motion for a directed verdict because relying on advice of
counsel in filing a defamation claim is sufficient to establish probable cause.

Plaintiffs contest Parker NW's reading of the record, arguing that it is
insufficient to establish probable cause to believe that their statements had been made
with actual malice. They also argue that Parker NW was not entitled to rely on legal
counsel's advice regarding the merits of its defamation claims, because Traverso and
Parker NW did not disclose to legal counsel in good faith the facts allegedly supporting
Parker NW's claims.

2. Analysis

We review the denial of a party's motion for a directed verdict in its favor
by considering the evidence, including reasonable inferences, in the light most favorable
to the nonmoving party and determining whether the moving party was entitled to a
verdict as a matter of law. Benjamin v. Wal-Mart Stores, Inc., 185 Or App 444, 452, 61
P3d 257 (2002), rev den, 335 Or 479 (2003) (citing Brown v. J. C. Penney Co., 297 Or
695, 705, 688 P2d 811 (1984)); see also Or Const, Art VII (Amended), § 3; Woodbury v.
CH2M Hill, Inc., 335 Or 154, 159, 61 P3d 918 (2003) (appellate courts review the denial
of a motion for directed verdict for any evidence to support a verdict in the nonmoving
party's favor). As pertinent here, that standard requires us to consider whether there was
any evidence from which a reasonable jury could have found facts or drawn inferences
sufficient to support a legal conclusion that Parker NW had probable cause to believe that
plaintiffs Roop, Sherbourne, Aspenwall, and Pointer had made defamatory statements
against it.

In this case, however, we need not address whether the record contains such
evidence, because Parker NW's reliance on the advice of counsel is dispositive. In
Erlandson, we explained that "'[a]dvice of counsel to the effect that there is a reasonable
chance that the [underlying] claim will be found valid is enough to establish probable
cause.'" 45 Or App at 475 (quoting Prosser, Law of Torts § 120 at 854). More recently,
we held--citing Erlandson--that, in the absence of bad faith, probable cause is established
by evidence that a claim had been initiated upon receipt of legal advice that the claim
"had a reasonable probability of success." Blandino, 179 Or App at 191; see alsoRestatement §675 comment g (when the underlying proceeding is a civil proceeding, "the
advice of counsel is a protection even though it consists merely of an opinion that the
facts so known or believed afford a chance, whether great or small, that the claim asserted
in the civil proceedings may be upheld").

In this case, it is undisputed that, after viewing a videotape of the "Water
Forum" program, Hammond identified to Traverso various statements made by the
participants that she believed to be defamatory and to give rise to defamatory
"implications." Hammond and Traverso later spoke by telephone about the statements;
Traverso told Hammond that he and Parisi possessed documents pertaining to the falsity
of plaintiffs' statements. Traverso also testified that, at the time the defamation action
was filed, he had a "gut feeling" that plaintiffs' statements had harmed Parker NW's
reputation. Ultimately, the identified statements and other related statements formed the
basis for the allegations in Parker NW's defamation claims against plaintiffs. Traverso
expressly testified that he relied on the advice and opinion of Hammond (as well as those
of Wall and Parisi) that plaintiffs' statements gave rise to an action for defamation.
Plainly, that evidence supports a finding that Parker NW relied on the advice of counsel.

Plaintiffs nevertheless insist that Parker NW was not entitled to rely on
Hammond's advice because it did not do so in good faith. Specifically, plaintiffs assert
that Parker NW and its president, Traverso, failed to disclose certain pertinent
information to Hammond before she rendered her advice. Parker NW, in turn, replies that
it and Traverso were not lawyers and simply did not know what facts would be relevant to
what they regarded as the "complicated legal questions involved in determining whether
Parker NW had a case."

We need not resolve that dispute. Indeed, the very existence of the dispute
over whether Parker NW relied in good faith on its counsel's legal advice demonstrates
why the trial court did not err in denying plaintiffs' motion for a directed verdict. As we
have noted, to prevail on appeal, plaintiffs must establish that there is no jury question
concerning any essential element of their claim, that is, that they are entitled to judgment
as a matter of law. Benjamin, 185 Or App at 452. We conclude that the trial court did
not err in denying plaintiffs' motion for a directed verdict against Parker NW.

D. Jury Instructions

1. The parties' arguments

In their nineteenth through twenty-second assignments of error, plaintiffs
Roop, Sherbourne, Aspenwall, and Pointer argue that, when the relevant facts are not in
dispute, whether a defendant in a wrongful initiation action had probable cause to
prosecute the underlying action is a question of law for the court. Consequently,
plaintiffs argue, the trial court erred in not determining "as a threshold issue" whether any
of the facts in evidence in the wrongful initiation proceeding constituted probable cause
in regard to any or all of the elements of the defamation claims against plaintiffs and in
failing to instruct the jury to resolve those specific facts. In particular, plaintiffs assert
that the trial court erred in failing to determine whether any or all of their allegedly
defamatory statements constituted nonactionable opinions and, in regard to those
statements that were not mere opinions, whether there were sufficient facts supporting a
reasonable belief by Parker NW that the statements were defamatory. According to
plaintiffs, the record is "devoid" of those or any other facts supporting a conclusion that
Parker had probable cause.

In their twenty-third through twenty-sixth assignments of error, plaintiffs
argue that, where the jury verdict forms asked only whether Parker NW had probable
cause to pursue the defamation action against each plaintiff, the trial court erred in failing
to instruct the jury which specific facts constituted probable cause, that is, failed to
instruct the jury regarding the legal consequences of its factual determinations.

Parker NW responds that, having failed to request a jury instruction relating
to the existence of specific facts supporting probable cause or the lack of same, and
having failed to request that the verdict forms include any specific factual interrogatories,
plaintiffs failed to preserve their claimed errors relating to the trial court's jury
instructions. Alternatively, they argue that, having requested a jury instruction that
related to probable cause but which did not contain the matter they now argue should
have been included, plaintiffs invited any such error. Parker NW makes no argument on
the merits.

2. Analysis

We begin with preservation. ORCP 59 H provides, in part:

"[N]o instruction given to a jury shall be subject to review upon appeal
unless its error, if any, was pointed out to the judge who gave it and unless a
notation of an exception is made immediately after the court instructs the
jury. Any point of exception shall be particularly stated and taken down by
the reporter or delivered in writing to the judge. It shall be unnecessary to
note an exception in court to any other ruling made. All adverse rulings,
including failure to give a requested instruction or a requested statement of
issues, except those contained in instructions and statements of issues given,
shall import an exception in favor of the party against whom the ruling was
made."

In Beall Transport Equipment Co. v. Southern Pacific, 335 Or 130, 136-41, 60 P3d 530
(2002), the Supreme Court explained that, under the first two sentences of ORCP 59 H, in
order to preserve error relating to a trial court's jury instruction, a party must "point out
the error to the judge immediately after the judge has instructed the jury, and the party
must 'particularly state' the objection and either deliver the objection to the judge in
writing or make sure that the reporter takes down the objection." The court also
explained that, under the remainder of the rule, a party "need not take those steps to
preserve error regarding 'any other ruling made'" and that among the rulings to which a
party need not except is a trial court's "failure to give a requested instruction." 335 Or at
137. Thus, where a party has requested a jury instruction, the issue whether the trial court
erred in failing to give that instruction is, in effect, automatically preserved for appeal.

In this case, however, the question is whether plaintiffs requested the
instruction that the trial court assertedly failed to give. At several points during a
colloquy concerning jury instructions and the form of the verdict, plaintiffs proposed that
the trial court instruct the jury to the effect that, if defendants reasonably believed (or not)
certain specified facts relating to plaintiffs' allegedly defamatory statements, defendants
had (or lacked) probable cause to prosecute the defamation action. At no point, however,
did plaintiffs state for the record precisely the form or content of that instruction. Nor
does the record on appeal contain any written instruction embodying what we understand
to be plaintiffs' proposed instruction. See UTCR 6.060 (setting out requirements for
requested jury instructions; providing in part that all requested jury instructions must be in
writing and delivered concurrently to the court and to opposing parties and that original
and one copy of requested jury instruction must be submitted to the court). Finally,
plaintiffs did not except to the probable cause instruction actually given by the trial court.

We conclude that, under those circumstances, plaintiffs failed to preserve
either the issue raised in their nineteenth through twenty-second assignments of error--that the trial court erred in failing to instruct the jury to resolve specific facts determined
by the court to be relevant to probable cause--or the issue raised in their twenty-third
through twenty-sixth assignments of error--that the trial court erred in failing to instruct
the jury regarding the legal consequences of its specific factual determinations. Those
assignments of error fail.

In summary, none of plaintiffs' assignments of error requires reversal of the
judgments in Hammond's favor against plaintiffs or in Parker NW's favor against
plaintiffs Roop, Aspenwall, Sherbourne, and Pointer. It follows that Parker NW's cross-assignments of error are moot and that the judgments in Parker NW's favor against
plaintiffs Roop, Aspenwall, Sherbourne, and Pointer are affirmed.

III. ANALYSIS OF ASSIGNMENTS OF ERROR ON CROSS-APPEAL

We turn, finally, to Parker NW's cross-appeal, in which it raises two
assignments of error pertaining to the judgment against it in Stevens's favor.

A. Jury Instructions

1. The parties' arguments

As previously described, at the close of trial, Parker NW unsuccessfully
requested a jury instruction pertaining to its affirmative defense under former ORS
30.895(2). Specifically, Parker NW requested that the trial court instruct the jury to
determine whether it had filed its defamation action "having as a purpose (not necessarily
the only purpose) the preservation and evaluation of the claim. If you determine that one
of the purposes of filing the lawsuit was to preserve and evaluate the claim, then your
verdict shall be for" Parker NW. The trial court declined to give that instruction,
reasoning that, where former ORS 30.895(2) referred to "the" purpose, it meant the only
purpose and the instruction therefore did not accurately reflect the statute.

Parker NW now argues that the trial court erred in failing to deliver the
requested instruction. It contends that, even considering the statute's use of the definite
article "the" before the noun "purpose," the text of former ORS 30.895(2), by its terms,
does not disclose the legislature's intent. It therefore urges us to consider the statute's
legislative history, including the fact that it was adopted as part of a 1987 bill that also
amended ORCP 17, providing for sanctions against an attorney or party who files an
action for an improper purpose or without a basis in law or fact. According to Parker
NW, that history suggests that former ORS 30.895(2) cannot properly be interpreted to
apply only when preserving and evaluating a claim is the sole purpose for filing an action
because, in that circumstance, the action is not also being filed to secure the proper
adjudication of a claim and its filing therefore exposes the attorney or party filing it to
sanctions under ORCP 17.

Apparently in the alternative, Parker NW contends that former ORS
30.895(2) properly should be understood as a "limited exception to the certification
requirements," allowing the filing of an action that "may or may not have merit" and
affording the party or attorney time to evaluate its merit. Relying on Hagan v. Gemstate
Manufacturing, Inc., 328 Or 535, 982 P2d 1108 (1999), Parker NW further asserts that,
because the meaning of the statute is not clear and because, properly construed, the
statutory defense was available to it even if it did not file its defamation action for the
sole purpose of preserving and evaluating that claim, the trial court was obligated to give
its instruction informing the jury of that meaning and application.

Stevens responds that the trial correctly understood the phrase "the purpose"
to mean the sole purpose and that it therefore did not err in refusing to give Parker NW's
requested instruction.

2. Analysis

A litigant is entitled to jury instructions on his or her theory of the case if
the instructions correctly state the law and are based on the pleadings and proof. See,
e.g., Beall Transport Equipment Co. v. Southern Pacific, 186 Or App 696, 703, 64 P3d
1193, adh'd to on recons, 187 Or App 472 (2003). There is no error, however, if the
requested instruction is not correct in all respects; if, although the requested instruction is
correct, its substance was covered fully by other instructions; or if the requested
instruction is not necessary in order to explain the particular issue or point of law to the
jury. Hernandez v. Barbo Machinery Co., 327 Or 99, 106, 957 P2d 147 (1998). Error in
failing to give a requested instruction requires reversal only if the jury instructions given
by the trial court, considered as a whole, caused prejudice to the party requesting the
instruction. Id.; Beall Transport Equipment Co., 186 Or App at 703.

In this case, the parties do not dispute that Parker NW properly pleaded the
affirmative defense provided in former ORS 30.895(2) or that the temporal predicates for
invocation of the defense were met; accordingly, Parker NW's requested jury instruction
was based on the pleadings and evidence in the case. The question remains whether it
was a correct statement of the law and, even if it was, whether it was "necessary in order
to explain the particular issue or point of law to the jury." Hernandez, 327 Or at 106. We
begin with the former inquiry. Specifically, we inquire whether, as advocated by Parker
NW in its jury instruction, the phrase "for the purpose of preserving and evaluating the
claim" means one of several possible purposes.

As Parker NW recognizes, as a common usage, the definite article "the" is
"used as a function word before a noun to limit [the noun's] application to that specified
by a succeeding element in the sentence." Webster's Third New Int'l Dictionary 2368-69
(unabridged ed 1993). Applying that usage to former ORS 30.895(2), the article "the"
functions to limit the noun "purpose" to the specified purpose of "preserving and
evaluating the claim." In other words, the use of the definite article suggests that the
phrase "for the purpose of preserving and evaluating the claim" properly is construed as
meaning, in effect, the only purpose. Reinforcing that conclusion is the fact that the noun
"purpose" is singular.

As we have noted, Parker NW insists that, considered in context with the
provisions of ORCP 17--establishing liability for sanctions for false certifications of
pleadings--former ORS 30.895(2) cannot plausibly be understood to mean only "the
purpose of preserving and evaluating the claim" because, if that is an attorney's or party's
only purpose, he or she is subject to sanctions under the contextual rule. However, as
Parker NW itself recognizes that, reading former ORS 30.895(2) and ORCP 17 C
together, the former plausibly can be considered an exception to the latter, that is, an
exemption from liability for sanctions. Thus, even reading former ORS 30.895(2) as
referring to the sole purpose of preserving and evaluating a claim, it nevertheless can be
read in harmony with ORCP 17C.

Also as noted, Parker NW relies on Hagan for the proposition that, if the
meaning of a statute is not clear on its face, the court must declare its meaning to the jury.
However, we have determined above that the meaning of former ORS 30.895(2) is,
indeed, clear from its text and context. Thus, Hagan does not assist Parker NW.

In sum, former ORS 30.895(2) is properly understood as referring to the
single purpose of preserving and evaluating a claim. Accordingly, Parker's requested jury
instruction was not a correct statement of the law. We therefore need not consider
whether the instruction was necessary or whether its subject matter was, instead, fully
covered by the instructions given. The trial court did not err in declining to give Parker's
requested jury instruction pertaining to former ORS 30.895(2).

Parker NW replies that, consistently with MacDonald v. Cottle, 133 Or App
35, 39, 889 P2d 1320, rev den, 321 Or 268 (1995), although a trial court has discretion to
confine a party's cross-examination within reasonable limits, it lacks discretion to exclude
altogether questions and answers directly challenging the disinterestedness or credibility
of a witness's testimony. Parker NW reiterates that, in this case, questions regarding
plaintiffs' earlier prayers for damages would have directly reflected on plaintiffs'
credibility and their "motive" for pursuing the wrongful initiation action.

2. Analysis

"[W]here a complainant's pleading is subsequently abandoned or
superseded, the original pleading is admissible as an evidentiary admission to refute or
impeach the present pleading or testimony of the complainant, subject to the right of the
complainant to explain any inconsistency." Swanson v. Hale, 273 Or 138, 142, 539 P2d
1073 (1975); see also Moore v. Drennan, 269 Or 189, 193, 523 P2d 1250 (1974) (where
the statements of fact in the plaintiff's prior pleadings were not consistent with the
plaintiff's pleadings and testimony at trial, the prior pleadings were admissible in
evidence and the plaintiff could introduce evidence to explain them); MacDonald, 133 Or
App at 38-39 (it was error to exclude evidence of the defendant's original, and
subsequently amended, admission that he did not give the plaintiff antibiotics before
extracting her tooth; that evidence "directly challenged [the defendant's] credibility" on a
material fact in issue); Southern Oregon Production Credit Assn v. Patridge, 71 Or App
53, 56, 691 P2d 135 (1984) (superseded answer was not a binding judicial admission, but
constituted evidence from which inferences could be drawn); Laird C. Kirkpatrick,
Oregon Evidence § 801.03[4][d], Art VIII-33-34 (4th ed 2002).

Whether the disputed evidence was relevant is a question of law for this
court; we review for an abuse of discretion the trial court's decision regarding whether
relevant evidence should nevertheless be excluded, under OEC 403, on the ground of
undue prejudice, confusion of the issues, misleading the jury, undue delay, or the needless
presentation of cumulative evidence. See State v. Fanus

We conclude that, even assuming that evidence of plaintiffs' superseded
pleadings was relevant to the issue of the amount of their noneconomic damages, the trial
court did not abuse its discretion in excluding the evidence. As described above, the trial
court had granted defendants' motion to strike plaintiffs' claim for punitive damages and,
without opposition from defendants, had granted plaintiffs' motion to exclude any
reference to punitive damages. The court concluded that, under those circumstances, it
was not "reasonable" or "appropriate" to admit evidence that plaintiffs had increased the
amount of their alleged noneconomic damages. Again, the court stated that "to say that
the Plaintiffs must have undervalued or overvalued their [noneconomic] damage claim
precipitously, without there being any explanation of the context in which that happened,
for the purpose of showing this jury that the damages are not in fact significant, I think is
unfair in a vacuum." In short, the trial court properly weighed the prejudicial effect of the
evidence and permissibly concluded that that effect substantially outweighed its probative
value. See McCathern v. Toyota Motor Corp., 332 Or 59, 71-72, 23 P3d 320 (2001) (trial
court did not abuse its discretion in admitting evidence; court complied with OEC 403 by
balancing the "cost in terms of prejudice of the evidence against its benefits"). There was
no error.

Affirmed on appeal and on cross-appeal.

1.
Plaintiff Stevens is now deceased; her personal representative has been substituted
for the purpose of this appeal.

"(1) In an action for damages on account of a defamatory
statement published or broadcast in a newspaper, magazine, other
printed periodical, or by radio, television or motion pictures, the
plaintiff shall not recover general damages unless:

"(a) A correction or retraction is demanded but not
published as provided in ORS 30.165 [(2001)] [setting out
procedural requirements for a demand for correction or
retraction][.]"

3.
Plaintiffs Roop and Stevens filed one wrongful initiation action and plaintiffs
Aspenwall, Pointer, and Sherbourne filed a separate wrongful initiation action. Both sets of
plaintiffs named Parker NW and Hammond as defendants. Roop and Stevens also named Wall
as a defendant; she was dismissed from the case before trial. The cases were tried together and
were consolidated for appeal. Unless otherwise noted, the positions at trial of the two sets of
plaintiffs coincided, as did the positions of Parker NW and Hammond. In this court, some
assignments of error pertain to fewer than all plaintiffs, or to Parker NW or Hammond but not
both; all assignments are described accordingly. References to "defendants" are to both Parker
NW and Hammond. References to Parker NW's president, Traverso, are to him in his individual
capacity.

"(1) In order to bring a claim for wrongful use of a civil
proceeding against another, a person shall not be required to plead
or prove special injury beyond the expense and other consequences
normally associated with defending against unfounded legal
claims.

"(2) The filing of a civil action within 60 days of the
running of the statute of limitations for the purpose of preserving
and evaluating the claim when the action is dismissed within 120
days after the date of filing shall not constitute grounds for a claim
for wrongful use of a civil proceeding under subsection (1) of this
section."

6.
As pertinent here, ORCP 17 C(1) provides that an attorney or party who signs or
files a pleading or other court paper makes the certifications set out in subsections (2) through (5)
of the rule, including certification that the pleading or other paper is not being presented for any
improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost
of litigation, ORCP 17 C(2); that the claims, defenses, and other legal positions taken in the
pleading are warranted by existing law or by a nonfrivolous argument for the extension,
modification, or reversal of existing law or the establishment of new law, ORCP 17 C(3); that,
unless specifically identified as not so certified, the facts alleged in the pleading are supported by
evidence, ORCP 17 C(4); and that, unless specifically identified as not so certified, any denials of
factual allegations are supported by evidence, ORCP 17 C(5).

8.
For the purpose of plaintiffs' motions for directed verdicts, the trial court
separately considered each of plaintiffs' allegedly defamatory statements. The trial court granted
plaintiff Stevens's motion for a directed verdict as to one of her allegedly defamatory statements,
pertaining to Parker NW's earlier application for a permit to build an "asphalt concrete plant."
Stevens later withdrew that motion and, having obtained a verdict in her favor, does not cross-assign error to the denial of the motions for directed verdicts.

9.
Plaintiffs advance a single, albeit multifaceted, argument in support of their first
five assignments of error. We understand them to have treated the trial court's ruling striking
punitive damages as subject to five separate assignments of error, one for each plaintiff.

12.
Although the Restatement is not binding on us, "Oregon courts have long
considered it, along with its comments, to be an instructive authority in this area." Portland
Trailer & Equipment, 182 Or App at 356 n 6.

14.
In their own words, plaintiffs moved to "[p]reclude any reference to amount
prayed for or changes in plaintiffs' prayers." Stevens originally sought $100,000 in noneconomic
damages from Parker NW and the same amount from Traverso. After the trial court struck
plaintiffs' claims for punitive damages and granted plaintiffs' motion for leave to file their second
amended complaint, those amounts were increased to $8,000,000 and $1,500,000, respectively.
The jury awarded Stevens $200,000.

"Although relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay or needless presentation of
cumulative evidence."